Easley v. State

• Decision Date: 22 April 1970
• Docket Number: No. 42789,42789
• Citation: 454 S.W.2d 758
• Parties: Aubrey Joe EASLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 758

454 S.W.2d 758

Aubrey Joe EASLEY, Appellant, v. The STATE of Texas, Appellee.

No. 42789.

Court of Criminal Appeals of Texas.

April 22, 1970.

Rehearing Denied June 2, 1970.

Lawrence R. Green, Dallas, for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Camille Elliott, Harry J. Schulz, Jr., and William T. Westmoreland, Jr., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from a conviction for rape by force with the punishment assessed at life.

The record reflects that at approximately 10:30 p.m. on October 2, 1967, the prosecutrix and her 7 year old daughter were preparing to go to bed in their one bedroom apartment in the City of Dallas. The prosecutrix's husband, a taxi driver, was working the night shift on October 2 and was not expected to come home until the early morning hours of October 3, 1967.

After putting her daughter to bed, the prosecutrix, who was wearing only a slip, lay down on her bed and dozed off. She was awakened by a man leaning or lying on top of her and biting her cheek. She screamed and began to struggle with her assailant, causing the two of them to fall off the bed onto the floor. At this point, the proscutrix's child, who was sleeping on a small bed next to the prosecutrix's woke up and cried out. The appellant put a knife to the prosecutrix's throat and told the child to be quiet. He also told the prosecutrix that if she screamed again he would use the knife on the child. Appellant then raped the prosecutrix.

Shortly thereafter, prosecutrix's husband came into the bedroom and turned on the overhead light. Appellant jumped up and fled through the bedroom door, struggling momentarily with the husband before he could get loose. During the struggle with the husband, appellant was shot in the cheek with a small revolver which the husband had in his possession. The husband gave chase but was unable to apprehend the assailant.

According to the husband's testimony, he arrived home at approximately 2:00 a.m. and noticed that the front door to his apartment had been 'jimmied' and was standing ajar. He drew a one-shot derringer which he always carried with him, walked through the house and turned on the bedroom light. The appellant jumped up and ran toward him in an attempt to escape. The husband shot him in the cheek causing a great deal of blood to flow from the appellant.

Appellant's extrajudicial confession was introduced in which he admitted the rape and acknowledged being shot in the left side of the face resulting in 'a small cut.'

At the time of the appellant's arrest some eleven days after the alleged offense he bore a scar on his left cheek.

Although the husband was not able to identify the appellant, the prosecutrix testified she saw appellant's features at close range in the light shining through the window from a nearby building and from the bathroom light that remained on. She also was able to observe him when her husband turned on the bedroom light. The prosecutrix made a positive in-court identification of the appellant as her assailant.

Viewing the evidence in the light most favorable to the jury's verdict, we deem the testimony clearly sufficient to support the verdict. Dr. Callahan (the assistant county health officer) did testify that the scar on the appellant's cheek was not, in his opinion, caused by a bullet but rather resulted from a laceration type wound. He had examined the appellant for the first time three months prior to the trial which commenced on June 24, 1968. We do not conclude that such testimony renders the evidence insufficient to support the verdict.

Appellant's sixth ground of error is overruled.

Appellant further contends the trial court erred in admitting into evidence his extrajudicial confession obtained from him in violation of Article 15.17, Vernon's Ann.C.C.P. Specifically, he argues the confession was inadmissible because the record does not reflect he was taken before a magistrate and warned of his rights.

The confession was shown to have been taken in accordance with Article 38.22, Vernon's Ann.C.C.P., as amended, 1967, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Therefore, appellant's contention is answered by what this court said in Easley v. State, 448 S.W.2d 490, 492:

'As to appellant's second contention that the record fails to show a sufficient compliance with Article 15.17, V.A.C.C.P., prior to appellant's interrrogation as to the alleged rape, attention is again called to the 1967 amendment to Article 38.22, supra. No longer is the validity of a confession dependent under Texas statutes upon warnings by both a magistrate under Article 15.17, supra, and the person taking the confession under Article 38.22, supra. Proper warnings by either may now suffice. Appellant was properly warned by the person taking the confession, and the failure to take him before a magistrate prior to the taking of the confession does not affect its validity, in absence of a...